Requirements of secured creditors. Skipping application deadline. Bankruptcy security lender requirements. Change the status of requirements in the registry.
It is possible to lower the priority of a claim for debt collection by recognizing this status as a security. Theoretically, such a procedure is not difficult, however, if the lender does not timely apply for inclusion of the requirement in the register or a change in its status, his demand may even fall “behind the register”. In a difficult case, the courts of several instances tried.
The plot of the case:
In the bankruptcy case of business company-1, the Marker company (hereinafter - the applicant, the company) applied for recognition of its claim as a security. The company's goal was to lower the order of its requirements. The debt itself is prejudicially recognized as justified and included in the third turn.
The company indicated that the debt arises from the loan agreement, the claim was ceded to the applicant by the bank. Collateral was issued on credit debt, the claim on it was also ceded to the company, but already after the debt itself was included in the queue.
The courts of three instances upheld the requirements, the judicial board of the Supreme Court of the Russian Federation refused, because they could not find reasons to include the claim, with the submission of which the applicant was late, in the list of claims of secured creditors.
Judicial act: determination of the Supreme Court of the Russian Federation of 01.04.2019 No. 304-ES17-1382 (8) in case No. A27-24985 / 2015
Court findings:
1. According to the assignment agreement, the transfer of the claim for security transactions is transferred to the company after full payment. The trial courts concluded that before the date of payment the applicant was not able to apply for a security status. That is, the applicant, for objective reasons, could not use his right as a security lender during the period when the register was opened. In this connection, the courts of first instance indicated that the creditor's claim had arisen already after the registry was closed and that the applicant reasonably and in compliance with the deadline applied to the court.
2. However, the board considered that the occurrence of the right to a security transaction due to full payment is not included in the list of exceptions when it is possible to restore the missed deadline for making a claim.
3. Judicial practice has formulated some cases in which missing the deadline for making a claim is not critical. As a rule, these are situations in which there was no objective possibility of going to court; in this case, the creditor should not bear negative consequences for the imperfection of actions that he could not perform. The restoration of the time limit for handling a claim is a legal technique, available exclusively for a good reason.
4. Initially, the main and collateral claims belonged to one person - the bank. The parties to the cession agreement agreed on a separate transfer of these rights, while they had the opportunity to determine a different order. The will of the parties to the contract cannot be attributed to exceptional and objective circumstances and cannot be opposed to the rights of third parties.
5. A regressive claim for a cession declared invalid may be attributed to exceptional cases. However, in the case of recourse, a new obligation arises, and in the case of cession, the lender changes under the existing obligation. The assignor as the legal predecessor had the opportunity to take care of the assignee and establish the security status of the claim.
6. The company’s request is submitted late and must be satisfied after the sale of the subject of the pledge and settlement with creditors, but mainly to “registered” creditors. However, since the requirement is already included in the third turn, the applicant will receive satisfaction in accordance with his turn, it is impractical to take his claim into account in the register.
Comments:
1) The register of creditors' claims was opened in February 2017, payment of the assignment took place in September of the same year, and only two months later the new creditor applied for inclusion in the register. At the time of the conclusion of the cession agreement, the bankruptcy case was already considered. Thus, having shown due diligence, the new creditor should have been aware that in the near future it is possible to complete the bankruptcy proceedings and proceed to the formation of the register of creditors.
2) Inclusion in the assignment agreement of the provision that the collateral requirement passes after full payment, a significant delay in the transition time of the collateral requirement can be regarded as unreasonable actions of the new creditor. If the assignment agreement was drawn up in such a way that the new creditor would have passed the pledge requirement earlier than the registry opening date, he would be able to lower the priority of his claim without missing a deadline.
3) It was also possible to include in the assignment agreement the obligation of the former creditor to take all necessary actions to collect the debt, including applying for inclusion of the claim in the register if the register opens before the date of transfer of the claim to the new creditor. In this case, the new creditor would not be in a situation where he is practically deprived of the opportunity to receive compensation, since his claim is now in the third stage.
4) Even if, due to objective circumstances, the new creditor could not early pay the entire amount for paying for the transfer of the collateral requirement to it, that is, through no fault of his own, he was deprived of the right to timely apply for inclusion of this requirement in the register, the previous one could do it creditor, while the right of claim was with him. In this regard, the construction of relations in such a way that lenders have delayed making the requirements in the register is a deliberate step of the parties.
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